NY DWI Laws: Can You Be Arrested & Convicted of Drunk Driving in New York Without Being in Your Vehicle

While nobody wants to find themselves as the subject of a New York DWI or DUI arrest, I don’t think anyone could legitimately argue that New York drunk driving laws are firm, serious and potentially devastating for a good reason. As a New York DWI lawyer and DUI attorney as well as a former Manhattan prosecutor assigned to the DWI Unit, I have seen some ugly cases where terrible accidents resulted from driving while intoxicated. Simply, New York VTL 1192 and its various subsections serve a very legitimate purpose in protecting the public.

With the understanding that the laws to protect our roads serve a tremendous purpose, one should not ignore or disregard the fact that people are accused of driving drunk when they may not be remotely intoxicate or impaired. Even assuming there is consumption of alcohol, that consumption may not rise to a criminal level. Regardless of your reason to challenge an arrest for DWI, police must act properly and you have the ability to exercise your rights and protect the same. Was there sufficient probable cause for the police to stop you? Was the intoxilizer or chemical test conducted wrongfully or was the machine not in proper working order? Despite the contention of the police that you failed a field sobriety test, was his or her opinion skewed or is there a non-alcohol related reason why you could not keep your balance? While the following case did not end up favorable to the defendant, can an argument be made that where the police do not find you in your vehicle or your vehicle is not moving (driving), there is not enough sufficient evidence to find you guilty of DWI?

In People v. Hryckowian, 2013 NY Slip Op 50008, a County Court in Sullivan County was confronted with the last question posed above. Can a person be convicted of DWI or another VTL 1192 crime even if that person was not in or driving a vehicle? Here, the defendant was arrested and ultimately convicted of Aggravated Driving While Intoxicated and Driving While Intoxicated after police found him in a parking lot at 2:30 am. According to the defendant (for the sake of this legal decision the court even accepted the defendant’s story as true because the ultimate finding would be the same), the vehicle he was accused of operating was not running, there was no key in the ignition and he was outside the vehicle when the police approached. Further, according to the defendant, the vehicle was merely parked in a parking lot and the defendant had been sleeping there for some time. The defendant stated that he had not had a drink since 11:00 pm when he fell asleep in the parking lot. Unfortunately for the defendant, however, a State Trooper testified that the defendant’s vehicle was not in the parking lot when he drove past it at 2:15 am, but was there at 2:30 am. At that time the defendant failed his sobriety tests, blew a .19 and had no explanation as to why his vehicle was not seen in the parking lot fifteen minutes earlier or how his BAC was so hight four hours after he last allegedly drank alcohol.

Again, even assuming the defendant was not in the vehicle or operating the vehicle, the Court found that the evidence against him was legally sufficient. Not only can direct evidence be used to find guilt, but circumstantial evidence as well. Further, the defendant’s assertion that he was “not pulled over” is not relevant. One can be found guilty of operating a vehicle even without driving the car, truck or other automobile. See People v. Collins, 70 AD 2d 986 (3d. Dept. 1979) (Even though officers did not observe the defendant driving, the defendant was slumped over “sleeping” in a parked and running car in the driveway of another person’s home he did not know. He had to get there somehow!). Here, the questions and answer is clear. Assuming the BAC was in excess of .08, there is recognition that one not actually be driving a car to “operate” it, could it be circumstantially established that the defendant (whose vehicle was not parked in the lot as he stated fifteen minutes earlier) drove and “operated” the vehicle while intoxicated? As the standard is “in the light most favorable to the People (prosecution),” in this particular case the answer was “yes.”

Although this particular defendant was unsuccessful in challenging his conviction, if the facts or evidence varied would it be possible that the resolution would have been different? It certainly could be, but this case is one that will likely be more hurtful than helpful for your defense. Distinguishing your case may be critical.

To find out more about New York DWI crimes and laws found under section 1192 of the Vehicle and Traffic Law, please follow the links above, search for “DWI” in the NewYorkCriminalLawyerBlog.Com or review the DUI and Drunk Driving section of the New-York-Lawyers.org website.

The New York DWI lawyers who established Saland Law PC represent clients throughout the New York City area. Prior to starting the criminal defense firm, both Elizabeth Crotty and Jeremy Saland served as DWI prosecutors in the Manhattan District Attorney’s Office.

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